Full Judgment Text
*IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 15 June, 2011
+ W.P.(C) 4326/2011
S.K. SRIVASTAVA ..... Petitioner
Through: Ms. Jyoti Singh, Sr. Advocate with
Mr. S.K. Gupta & Mr. H.P. Singh,
Advocates
Versus
UOI & ORS. ..... Respondents
Through: Ms. Preeti Dalal, Adv. for R-1.
Mr. Saqib, Adv. for R-1&3.
Mr. Vikas Singh, Sr. Advocate with
Ms. Amrita Narayan, Adv. for R-4.
CORAM : -
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition seeks setting aside / quashing of the recommendations
of the empowered Committee of Secretaries for appointment to the post of
Member, CBDT qua respondent no.4 Sh. S.S. Rana (IRS 75014) and
W.P.(C)4326/2011 Page 1 of 16
respondent no.6 Ms. Sudha Sharma (IRS 76007). The petition also seeks
setting aside and quashing of the Vigilance Clearance issued to the said Sh.
S.S. Rana and Ms. Sudha Sharma, on the ground of the same being
patently illegal.
2. The petitioner has pleaded:
(i) That the petitioner himself is an IRS officer;
(ii) That the respondent No.4 Sh. S.S. Rana had between the years
1988-1990 conducted search and seizure operations in the
premises and business of Sitani Group and detected and seized
documents and other evidences of large scale tax evasion and
money laundering;
(iii) That Sh. S.S. Rana however handed over the appraisal report
and seized material to the petitioner who was the Assessing
rd
Officer, only on 23 March, 1992 when the limitation for
st
passing assessment orders was to expire on 31 March, 1992;
W.P.(C)4326/2011 Page 2 of 16
leaving virtually no time with the petitioner to pass the
assessment order;
(iv) That even though the delay as aforesaid was attributable to Sh.
S.S. Rana but the petitioner was imputed with gross
negligence and unlawful conduct, for not passing the
st
assessment order in the case of Sitani Group by 31 March,
1992;
(v) That the petitioner was made the scapegoat to protect and
cover up the corrupt practices of Sh. S.S. Rana, while no
action was taken against Sh. S.S. Rana;
(vi) That the petitioner was thereby implicated in false vigilance
cases;
(vii) That Sh. S.S. Rana and Ms. Sudha Sharma thus do not posses
high professional merit and excellence and cannot be called to
be persons of impeccable integrity;
W.P.(C)4326/2011 Page 3 of 16
(viii) “That serious allegations of corruption and gross misconduct
are pending against Sh. S.S. Rana and Ms. Sudha Sharma and
to inquire into those imputations of misconduct and
allegations, Government has set up inquiries by Inquiry
Committees comprising subordinate officers of CBDT
wherein Sh. S.S. Rana and Ms. Sudha Sharma are being
appointed and whereby they would be controlling those
inquiries”. Reference is made to “one man Inquiry Committee
of Sh. Akhilesh Prasad, CCIT, Delhi III, New Delhi
(Annexure S-3) to enquire into allegations by petitioner
against other officers that include Sh. S.S. Rana and Ms.
Sudha Sharma” and to “Inquiry Committee headed by Smt.
Poonam Kishore Saxena, Member (A&J), CBDT (Annexure
S-4) and comprising of Ms. Pramila Bhardwaj, Commissioner
of Income Tax (CIT) and Sh. Virendra Singh, CIT to enquire
into allegations by petitioners and allegations against the
petitioner”;
W.P.(C)4326/2011 Page 4 of 16
(ix) The petitioner has earlier filed Cr.W.P. No.876/2011 for
directing CBI to register FIR and investigate under Prevention
of Corruption Act, 1988 to determine illegal loss and likely
loss in excess of 100 crores to the Public Exchequer;
`
(x) That CAT Bar Association has also found gross misconduct
overreaching the process of administration of justice and
obstruction of justice delivery system by Sh. S.S. Rana and his
accomplices and have reported the same to the Chairman,
CAT etc.;
(xi) That mischief and manipulation of Sh. S.S. Rana and Ms.
Sudha Sharma stand judicially determined in judgment dated
th
28 April, 2011 in C.W.P. No.7880/2010, copy whereof is
filed as Annexure S-6 to the writ petition;
(xii) That Ms. Sudha Sharma as DGIT (Vig.) and as CVO, CBDT
protected and sheltered Sh. S.S. Rana and has colluded with
him;
W.P.(C)4326/2011 Page 5 of 16
(xiii) Reference is made to various judgments to contend that in
exercise of judicial review the Courts can determine whether
the incumbent possesses qualifications for appointment and
whether the manner of appointment was fair, just and
reasonable and on the proposition that the post of Member,
CBDT is a ex-cadre selection post;
rd
(xiv) The petitioner has in the list of dates stated that on 23
November, 2010 “Government set up Inquiry Committee to
enquire into allegations by petitioner against officers like Sh.
th
S.S. Rana, etc.” and that on 28 April, 2011 “Government set
up another Inquiry Committee under Smt. Poonam K. Saxena
to inquiry into allegations by petitioner against officers like
Sh. S.S. Rana, Ms. Sudha Sharma, Sh. Prakash Chandra etc.”
3. The senior counsel for the petitioner has during the hearing stated
that the recommendations of the Committee of Secretaries for appointment
of Sh. S.S. Rana and Ms. Sudha Sharma as members CBDT are now
pending consideration before the Appointments Committee of the Cabinet.
W.P.(C)4326/2011 Page 6 of 16
She has further referred to the Central Board of Direct Taxes (Chairman
and Members) Recruitment Rules, 2006 which prescribe essential
qualification inter alia of “ Having impeccable reputation of integrity” for
deputation/absorption as member of CBDT. She has vehemently argued
that once two inquiries as aforesaid are pending against Sh. S.S. Rana &
Ms. Sudha Sharma, they cannot be said to be having reputation of
impeccable integrity and there is obviously an error in the recommendation
of the Committee of Secretaries and in report of vigilance inquiry done qua
the said persons and which is required to be corrected by this Court in
exercise of judicial review. Reliance is placed on para 43 of judgment
rd
dated 3 March, 2011 of the Apex Court in W.P.(C) No.348/2010 titled
Centre for PIL Vs. Union of India and which in turn refers to Hari Bansh
Lal Vs. Sahodar Prasad Mahto (2010) 9 SCC 655 where the challenge
was made on the ground of the selectee being a person of “doubtful
integrity”. The senior counsel has contended that even though the report of
the two inquiries aforesaid against Sh. S.S. Rana & Ms. Sudha Sharma has
not been submitted yet but the very pendency of inquiries against them
W.P.(C)4326/2011 Page 7 of 16
would make them persons of doubtful integrity and by no means can they
be said to be having impeccable reputation of integrity.
rd
4. The Apex Court in the judgment dated 3 March, 2011 (supra) also
held that a writ of quo warranto lies only when the appointment is contrary
to a statutory provision; else suitability of a candidate for appointment to a
post is to be judged by the Appointing Authority and not by the Court,
unless the appointment is contrary to the statutory rules / provisions.
5. It was thus enquired from the senior counsel, whether the Court can
interfere with the decision of the Committee of Secretaries and the
Vigilance Department, of Sh. S.S. Rana & Ms. Sudha Sharma having
impeccable reputation of integrity in as much as while this Court is not
equipped to know the reputation enjoyed by Sh. S.S. Rana & Ms. Sudha
Sharma, the Committee of Secretaries is expected to have, by making
inquiries and on the basis of record, reached a conclusion that they are
enjoying impeccable reputation of integrity.
W.P.(C)4326/2011 Page 8 of 16
6. The senior counsel however contends that owing to the pendency of
two inquiries aforesaid, the recommendation for appointment is in
violation of the Rules aforesaid and thus this Court ought to interfere.
7. I may mention that though the senior counsel in the list of cases
handed over has also mentioned Registrar, Cooperative Societies Vs. F.X.
th
Fernando (1994) 2 SCC 746 and to the judgment dated 20 July, 2010 of
this Court in W.P.(C) No.8216/2009 titled Raghubir Singh Vs. UOI but no
reference / reliance during hearing was placed on the two judgments
aforesaid.
8. The senior counsel for the respondent No.4 Sh. S.S. Rana appearing
on advance notice has vociferously contended that the petitioner has
blatantly misrepresented facts in the list of dates and in the writ petition
and sought to create an impression as if the two inquiries aforesaid are
against Sh. S.S. Rana. He contends that the counsel for the petitioner has
argued also on the same lines, when the documents filed as annexures to
the petition do not support the averments in the petition. It is further
contended that it has been mischievously stated in the list of dates that the
W.P.(C)4326/2011 Page 9 of 16
inquiries are against officers “like” Sh. S.S. Rana & Ms. Sudha Sharma.
The senior counsel has taken me to Annexure S-3 to the petition being the
rd
letter dated 23 November, 2010 of the Deputy Commissioner of Income
Tax (Vig.) to the petitioner. It is contended that the vital enclosure to the
said letter is intentionally suppressed. The senior counsel has handed over
th
the said enclosure being the Memorandum dated 9 November, 2010 of the
CBDT qua holding of preliminary confidential inquiry in respect of
allegations against officers made by the petitioner. With reference thereto,
it is shown that the same nowhere concerns Sh. S.S. Rana or Ms. Sudha
Sharma. Similarly with reference to Annexure S-4 being the Office
th
Memorandum dated 28 April, 2011 of CBDT, it is again shown that the
other inquiry is also not against Sh. S.S. Rana and Ms. Sudha Sharma. He
has thus contended that an entirely false case has been urged, of inquiries
pending against Sh. S.S. Rana & Ms. Sudha Sharma. It is further contended
that the petitioner is a highly litigious person who has filed as many as 31
cases against various officials of the department. A list of such cases is
handed over. It is thus contended that no case for judicial review is made
W.P.(C)4326/2011 Page 10 of 16
out and the petition ought to be dismissed with exemplary deterrent costs
on the petitioner.
9. Though the senior counsel for the petitioner in rejoinder attempted to
faintly urge that in the two inquiry proceedings aforesaid, inquiry is to be
made into allegations by the petitioner against all concerned but the said
argument cannot be accepted. The name of Sh. S.S. Rana & Ms. Sudha
Sharma does not find mention anywhere in the documents filed of the
inquiry. The argument that even though their names do not find mention,
but since the petitioner is making allegations against them also, the inquiry
would be against them also is preposterous and cannot be accepted.
Without the Inquiry Officer having been directed to look into the
allegations against Sh. S.S. Rana & Ms. Sudha Sharma, Inquiry Officer
would be incompetent to do so.
10. Similarly though reference to the judgment dated judgment dated
th
20 July, 2010 of this Court in W.P.(C) No.8216/2009 (supra) has been
made but it has not been shown as to how the same in any manner indicts
Sh. S.S. Rana & Ms. Sudha Sharma. The representation of CAT Bar
W.P.(C)4326/2011 Page 11 of 16
Association to Chairman CAT, cannot also be the basis for this Court to
interfere when that Bar Association is not even before this Court.
11. The senior counsel for the petitioner lastly falls back on W.P.(CRL)
No.876/2011 in which notice has been issued. However, no copy even of
the said writ petition has been filed for this Court to form an opinion as to
what are the allegations, if any, therein of the petitioner.
12. I am not willing to adjourn the matter on the said ground, without
the petitioner having been able to make out a case inspite of the petitioner
himself personally present in the Court and briefing the counsel and
without the petitioner having been able to place any material before the
Court. Keeping the writ petition, of the nature as the present one, pending
can play havoc with the careers of others under consideration for
appointment to high offices. The petitioner, admittedly entertaining a
personal grievance and vengeance against Sh. S.S. Rana & Ms. Sudha
Sharma, without making out a case against them, cannot interfere with the
process of their deputation/absorption/promotion/appointment by casting a
cloud as to their eligibility by merely keeping such petition pending.
W.P.(C)4326/2011 Page 12 of 16
13. The Supreme Court in Ashok Kumar Pandey v. State of West
Bengal (2004) 3 SCC 349 though in relation to PILs held that the same are
to be admitted with great care for redressal only of genuine public wrong
or public injury and not for the redressal of private, publicity oriented or
other disputes not genuinely concerned with public interest. It was further
held that Courts should be watchful that no one‟s character is besmirched
and that justifiable executive actions are not assailed for oblique motives;
the Court has to be extremely careful that it does not encroach upon the
sphere reserved by the Constitution to the executive and the legislature;
Court has to strike balance between two conflicting interests: (i) nobody
should be allowed to indulge in wild and reckless allegations besmirching
the character of others; and (ii) avoidance of public mischief and to avoid
mischievous petitions seeking to assail, for oblique motives, justifiable
executive actions. It was further held that the Court cannot afford to be
liberal. Similarly in Secretary, Minor Irrigation & Rural Engineering
Services, UP v. Sahngoo Ram Arya (2002) 5 SCC 521 it was held that the
High Court must reach a conclusion on the basis of pleadings and material
on record that a prima facie case has been made out against a person and
W.P.(C)4326/2011 Page 13 of 16
merely because a party has made allegations against a person, High Court
cannot direct investigation.
14. Even though the present is not a PIL but since the petitioner is
admittedly not competing with Sh. S.S.Rana and Ms. Sudha Sharma for the
post of Member, CBDT, and even though out of personal vendetta is
impugning the process of selection of Sh. S.S. Rana and Ms. Sudha
Sharma as contrary to public interest, the above principles would apply.
15. In this regard it may also be noticed that the senior counsel for the
petitioner has lastly urged that if all the records are summoned relating to
the Sitani Group, the petitioner would be able to demonstrate therefrom
that Sh. S.S. Rana has helped the Sitani Group to evade tax in excess of
1000 crores and that Ms. Sudha Sharma protected Sh. S.S. Rana. It is
`
contended that the said records cannot be available with the petitioner.
16. However, a writ petition cannot be entertained to allow the petitioner
to commence a roving and fishing inquiry. Reference in this regard may
be made to a) Prakash Vir Shastri v. UOI AIR 1974 Delhi 1; b) AGR
W.P.(C)4326/2011 Page 14 of 16
Investment Ltd. v. Addl. Commr. of Income Tax 176 (2011) DLT 703; c)
A.Hamsaveni v. State of Tamil Nadu (1994) 6 SCC 51; d) N.K. Singh v.
UOI (1994) 6 SCC 98 & (e) Sadananda Halo v. Mumtaz Ali Sheikh
(2008) 4 SCC 619. Moreover, the petitioner himself is working in the same
department and from the documents annexed to the petition, appears to
have access to whatsoever documents he requires. Further in the present
day times of Right to Information, the failure of the petitioner to place any
material before this Court can lead to only one inference that the petitioner
is not possessed of any such material and had he been so possessed, he
would have placed the same before the Court in the first instance itself.
17. As aforesaid, it is not the job of this Court to determine whether Sh.
S.S. Rana & Ms. Sudha Sharma enjoy impeccable reputation of integrity.
The petitioner as aforesaid has failed to place any material before this
Court to show that they do not.
18. There is thus no merit in the petition; the same is dismissed. Though
the petitioner is found guilty of making a false façade of inquiries pending
against Sh. S.S. Rana & Ms. Sudha Sharma and of having gone to the
W.P.(C)4326/2011 Page 15 of 16
extent of pleading that appointment of Sh. S.S. Rana & Ms. Sudha Sharma
as members of the CBDT would place them above the Officers inquiring
against them and which pleas have turned out to be blatantly false but since
the writ petition is dismissed in limine , I refrain myself from imposing any
costs on the petitioner. The petitioner is however warned to be careful in
future of the pleas made and the arguments taken before the Court.
RAJIV SAHAI ENDLAW
VACATION JUDGE
JUNE 15, 2011
„gsr‟..
W.P.(C)4326/2011 Page 16 of 16
th
Date of decision: 15 June, 2011
+ W.P.(C) 4326/2011
S.K. SRIVASTAVA ..... Petitioner
Through: Ms. Jyoti Singh, Sr. Advocate with
Mr. S.K. Gupta & Mr. H.P. Singh,
Advocates
Versus
UOI & ORS. ..... Respondents
Through: Ms. Preeti Dalal, Adv. for R-1.
Mr. Saqib, Adv. for R-1&3.
Mr. Vikas Singh, Sr. Advocate with
Ms. Amrita Narayan, Adv. for R-4.
CORAM : -
HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may No
be allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition seeks setting aside / quashing of the recommendations
of the empowered Committee of Secretaries for appointment to the post of
Member, CBDT qua respondent no.4 Sh. S.S. Rana (IRS 75014) and
W.P.(C)4326/2011 Page 1 of 16
respondent no.6 Ms. Sudha Sharma (IRS 76007). The petition also seeks
setting aside and quashing of the Vigilance Clearance issued to the said Sh.
S.S. Rana and Ms. Sudha Sharma, on the ground of the same being
patently illegal.
2. The petitioner has pleaded:
(i) That the petitioner himself is an IRS officer;
(ii) That the respondent No.4 Sh. S.S. Rana had between the years
1988-1990 conducted search and seizure operations in the
premises and business of Sitani Group and detected and seized
documents and other evidences of large scale tax evasion and
money laundering;
(iii) That Sh. S.S. Rana however handed over the appraisal report
and seized material to the petitioner who was the Assessing
rd
Officer, only on 23 March, 1992 when the limitation for
st
passing assessment orders was to expire on 31 March, 1992;
W.P.(C)4326/2011 Page 2 of 16
leaving virtually no time with the petitioner to pass the
assessment order;
(iv) That even though the delay as aforesaid was attributable to Sh.
S.S. Rana but the petitioner was imputed with gross
negligence and unlawful conduct, for not passing the
st
assessment order in the case of Sitani Group by 31 March,
1992;
(v) That the petitioner was made the scapegoat to protect and
cover up the corrupt practices of Sh. S.S. Rana, while no
action was taken against Sh. S.S. Rana;
(vi) That the petitioner was thereby implicated in false vigilance
cases;
(vii) That Sh. S.S. Rana and Ms. Sudha Sharma thus do not posses
high professional merit and excellence and cannot be called to
be persons of impeccable integrity;
W.P.(C)4326/2011 Page 3 of 16
(viii) “That serious allegations of corruption and gross misconduct
are pending against Sh. S.S. Rana and Ms. Sudha Sharma and
to inquire into those imputations of misconduct and
allegations, Government has set up inquiries by Inquiry
Committees comprising subordinate officers of CBDT
wherein Sh. S.S. Rana and Ms. Sudha Sharma are being
appointed and whereby they would be controlling those
inquiries”. Reference is made to “one man Inquiry Committee
of Sh. Akhilesh Prasad, CCIT, Delhi III, New Delhi
(Annexure S-3) to enquire into allegations by petitioner
against other officers that include Sh. S.S. Rana and Ms.
Sudha Sharma” and to “Inquiry Committee headed by Smt.
Poonam Kishore Saxena, Member (A&J), CBDT (Annexure
S-4) and comprising of Ms. Pramila Bhardwaj, Commissioner
of Income Tax (CIT) and Sh. Virendra Singh, CIT to enquire
into allegations by petitioners and allegations against the
petitioner”;
W.P.(C)4326/2011 Page 4 of 16
(ix) The petitioner has earlier filed Cr.W.P. No.876/2011 for
directing CBI to register FIR and investigate under Prevention
of Corruption Act, 1988 to determine illegal loss and likely
loss in excess of 100 crores to the Public Exchequer;
`
(x) That CAT Bar Association has also found gross misconduct
overreaching the process of administration of justice and
obstruction of justice delivery system by Sh. S.S. Rana and his
accomplices and have reported the same to the Chairman,
CAT etc.;
(xi) That mischief and manipulation of Sh. S.S. Rana and Ms.
Sudha Sharma stand judicially determined in judgment dated
th
28 April, 2011 in C.W.P. No.7880/2010, copy whereof is
filed as Annexure S-6 to the writ petition;
(xii) That Ms. Sudha Sharma as DGIT (Vig.) and as CVO, CBDT
protected and sheltered Sh. S.S. Rana and has colluded with
him;
W.P.(C)4326/2011 Page 5 of 16
(xiii) Reference is made to various judgments to contend that in
exercise of judicial review the Courts can determine whether
the incumbent possesses qualifications for appointment and
whether the manner of appointment was fair, just and
reasonable and on the proposition that the post of Member,
CBDT is a ex-cadre selection post;
rd
(xiv) The petitioner has in the list of dates stated that on 23
November, 2010 “Government set up Inquiry Committee to
enquire into allegations by petitioner against officers like Sh.
th
S.S. Rana, etc.” and that on 28 April, 2011 “Government set
up another Inquiry Committee under Smt. Poonam K. Saxena
to inquiry into allegations by petitioner against officers like
Sh. S.S. Rana, Ms. Sudha Sharma, Sh. Prakash Chandra etc.”
3. The senior counsel for the petitioner has during the hearing stated
that the recommendations of the Committee of Secretaries for appointment
of Sh. S.S. Rana and Ms. Sudha Sharma as members CBDT are now
pending consideration before the Appointments Committee of the Cabinet.
W.P.(C)4326/2011 Page 6 of 16
She has further referred to the Central Board of Direct Taxes (Chairman
and Members) Recruitment Rules, 2006 which prescribe essential
qualification inter alia of “ Having impeccable reputation of integrity” for
deputation/absorption as member of CBDT. She has vehemently argued
that once two inquiries as aforesaid are pending against Sh. S.S. Rana &
Ms. Sudha Sharma, they cannot be said to be having reputation of
impeccable integrity and there is obviously an error in the recommendation
of the Committee of Secretaries and in report of vigilance inquiry done qua
the said persons and which is required to be corrected by this Court in
exercise of judicial review. Reliance is placed on para 43 of judgment
rd
dated 3 March, 2011 of the Apex Court in W.P.(C) No.348/2010 titled
Centre for PIL Vs. Union of India and which in turn refers to Hari Bansh
Lal Vs. Sahodar Prasad Mahto (2010) 9 SCC 655 where the challenge
was made on the ground of the selectee being a person of “doubtful
integrity”. The senior counsel has contended that even though the report of
the two inquiries aforesaid against Sh. S.S. Rana & Ms. Sudha Sharma has
not been submitted yet but the very pendency of inquiries against them
W.P.(C)4326/2011 Page 7 of 16
would make them persons of doubtful integrity and by no means can they
be said to be having impeccable reputation of integrity.
rd
4. The Apex Court in the judgment dated 3 March, 2011 (supra) also
held that a writ of quo warranto lies only when the appointment is contrary
to a statutory provision; else suitability of a candidate for appointment to a
post is to be judged by the Appointing Authority and not by the Court,
unless the appointment is contrary to the statutory rules / provisions.
5. It was thus enquired from the senior counsel, whether the Court can
interfere with the decision of the Committee of Secretaries and the
Vigilance Department, of Sh. S.S. Rana & Ms. Sudha Sharma having
impeccable reputation of integrity in as much as while this Court is not
equipped to know the reputation enjoyed by Sh. S.S. Rana & Ms. Sudha
Sharma, the Committee of Secretaries is expected to have, by making
inquiries and on the basis of record, reached a conclusion that they are
enjoying impeccable reputation of integrity.
W.P.(C)4326/2011 Page 8 of 16
6. The senior counsel however contends that owing to the pendency of
two inquiries aforesaid, the recommendation for appointment is in
violation of the Rules aforesaid and thus this Court ought to interfere.
7. I may mention that though the senior counsel in the list of cases
handed over has also mentioned Registrar, Cooperative Societies Vs. F.X.
th
Fernando (1994) 2 SCC 746 and to the judgment dated 20 July, 2010 of
this Court in W.P.(C) No.8216/2009 titled Raghubir Singh Vs. UOI but no
reference / reliance during hearing was placed on the two judgments
aforesaid.
8. The senior counsel for the respondent No.4 Sh. S.S. Rana appearing
on advance notice has vociferously contended that the petitioner has
blatantly misrepresented facts in the list of dates and in the writ petition
and sought to create an impression as if the two inquiries aforesaid are
against Sh. S.S. Rana. He contends that the counsel for the petitioner has
argued also on the same lines, when the documents filed as annexures to
the petition do not support the averments in the petition. It is further
contended that it has been mischievously stated in the list of dates that the
W.P.(C)4326/2011 Page 9 of 16
inquiries are against officers “like” Sh. S.S. Rana & Ms. Sudha Sharma.
The senior counsel has taken me to Annexure S-3 to the petition being the
rd
letter dated 23 November, 2010 of the Deputy Commissioner of Income
Tax (Vig.) to the petitioner. It is contended that the vital enclosure to the
said letter is intentionally suppressed. The senior counsel has handed over
th
the said enclosure being the Memorandum dated 9 November, 2010 of the
CBDT qua holding of preliminary confidential inquiry in respect of
allegations against officers made by the petitioner. With reference thereto,
it is shown that the same nowhere concerns Sh. S.S. Rana or Ms. Sudha
Sharma. Similarly with reference to Annexure S-4 being the Office
th
Memorandum dated 28 April, 2011 of CBDT, it is again shown that the
other inquiry is also not against Sh. S.S. Rana and Ms. Sudha Sharma. He
has thus contended that an entirely false case has been urged, of inquiries
pending against Sh. S.S. Rana & Ms. Sudha Sharma. It is further contended
that the petitioner is a highly litigious person who has filed as many as 31
cases against various officials of the department. A list of such cases is
handed over. It is thus contended that no case for judicial review is made
W.P.(C)4326/2011 Page 10 of 16
out and the petition ought to be dismissed with exemplary deterrent costs
on the petitioner.
9. Though the senior counsel for the petitioner in rejoinder attempted to
faintly urge that in the two inquiry proceedings aforesaid, inquiry is to be
made into allegations by the petitioner against all concerned but the said
argument cannot be accepted. The name of Sh. S.S. Rana & Ms. Sudha
Sharma does not find mention anywhere in the documents filed of the
inquiry. The argument that even though their names do not find mention,
but since the petitioner is making allegations against them also, the inquiry
would be against them also is preposterous and cannot be accepted.
Without the Inquiry Officer having been directed to look into the
allegations against Sh. S.S. Rana & Ms. Sudha Sharma, Inquiry Officer
would be incompetent to do so.
10. Similarly though reference to the judgment dated judgment dated
th
20 July, 2010 of this Court in W.P.(C) No.8216/2009 (supra) has been
made but it has not been shown as to how the same in any manner indicts
Sh. S.S. Rana & Ms. Sudha Sharma. The representation of CAT Bar
W.P.(C)4326/2011 Page 11 of 16
Association to Chairman CAT, cannot also be the basis for this Court to
interfere when that Bar Association is not even before this Court.
11. The senior counsel for the petitioner lastly falls back on W.P.(CRL)
No.876/2011 in which notice has been issued. However, no copy even of
the said writ petition has been filed for this Court to form an opinion as to
what are the allegations, if any, therein of the petitioner.
12. I am not willing to adjourn the matter on the said ground, without
the petitioner having been able to make out a case inspite of the petitioner
himself personally present in the Court and briefing the counsel and
without the petitioner having been able to place any material before the
Court. Keeping the writ petition, of the nature as the present one, pending
can play havoc with the careers of others under consideration for
appointment to high offices. The petitioner, admittedly entertaining a
personal grievance and vengeance against Sh. S.S. Rana & Ms. Sudha
Sharma, without making out a case against them, cannot interfere with the
process of their deputation/absorption/promotion/appointment by casting a
cloud as to their eligibility by merely keeping such petition pending.
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13. The Supreme Court in Ashok Kumar Pandey v. State of West
Bengal (2004) 3 SCC 349 though in relation to PILs held that the same are
to be admitted with great care for redressal only of genuine public wrong
or public injury and not for the redressal of private, publicity oriented or
other disputes not genuinely concerned with public interest. It was further
held that Courts should be watchful that no one‟s character is besmirched
and that justifiable executive actions are not assailed for oblique motives;
the Court has to be extremely careful that it does not encroach upon the
sphere reserved by the Constitution to the executive and the legislature;
Court has to strike balance between two conflicting interests: (i) nobody
should be allowed to indulge in wild and reckless allegations besmirching
the character of others; and (ii) avoidance of public mischief and to avoid
mischievous petitions seeking to assail, for oblique motives, justifiable
executive actions. It was further held that the Court cannot afford to be
liberal. Similarly in Secretary, Minor Irrigation & Rural Engineering
Services, UP v. Sahngoo Ram Arya (2002) 5 SCC 521 it was held that the
High Court must reach a conclusion on the basis of pleadings and material
on record that a prima facie case has been made out against a person and
W.P.(C)4326/2011 Page 13 of 16
merely because a party has made allegations against a person, High Court
cannot direct investigation.
14. Even though the present is not a PIL but since the petitioner is
admittedly not competing with Sh. S.S.Rana and Ms. Sudha Sharma for the
post of Member, CBDT, and even though out of personal vendetta is
impugning the process of selection of Sh. S.S. Rana and Ms. Sudha
Sharma as contrary to public interest, the above principles would apply.
15. In this regard it may also be noticed that the senior counsel for the
petitioner has lastly urged that if all the records are summoned relating to
the Sitani Group, the petitioner would be able to demonstrate therefrom
that Sh. S.S. Rana has helped the Sitani Group to evade tax in excess of
1000 crores and that Ms. Sudha Sharma protected Sh. S.S. Rana. It is
`
contended that the said records cannot be available with the petitioner.
16. However, a writ petition cannot be entertained to allow the petitioner
to commence a roving and fishing inquiry. Reference in this regard may
be made to a) Prakash Vir Shastri v. UOI AIR 1974 Delhi 1; b) AGR
W.P.(C)4326/2011 Page 14 of 16
Investment Ltd. v. Addl. Commr. of Income Tax 176 (2011) DLT 703; c)
A.Hamsaveni v. State of Tamil Nadu (1994) 6 SCC 51; d) N.K. Singh v.
UOI (1994) 6 SCC 98 & (e) Sadananda Halo v. Mumtaz Ali Sheikh
(2008) 4 SCC 619. Moreover, the petitioner himself is working in the same
department and from the documents annexed to the petition, appears to
have access to whatsoever documents he requires. Further in the present
day times of Right to Information, the failure of the petitioner to place any
material before this Court can lead to only one inference that the petitioner
is not possessed of any such material and had he been so possessed, he
would have placed the same before the Court in the first instance itself.
17. As aforesaid, it is not the job of this Court to determine whether Sh.
S.S. Rana & Ms. Sudha Sharma enjoy impeccable reputation of integrity.
The petitioner as aforesaid has failed to place any material before this
Court to show that they do not.
18. There is thus no merit in the petition; the same is dismissed. Though
the petitioner is found guilty of making a false façade of inquiries pending
against Sh. S.S. Rana & Ms. Sudha Sharma and of having gone to the
W.P.(C)4326/2011 Page 15 of 16
extent of pleading that appointment of Sh. S.S. Rana & Ms. Sudha Sharma
as members of the CBDT would place them above the Officers inquiring
against them and which pleas have turned out to be blatantly false but since
the writ petition is dismissed in limine , I refrain myself from imposing any
costs on the petitioner. The petitioner is however warned to be careful in
future of the pleas made and the arguments taken before the Court.
RAJIV SAHAI ENDLAW
VACATION JUDGE
JUNE 15, 2011
„gsr‟..
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